Remembering a Giant

12.20.12

Robert Bork, RIP

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Robert Bork's contributions to American law were vast and varied, and yet in this sad hour of his passing, I find myself thinking first of his jokes. Despite their reputation, lawyers can be funny. Robert Bork may have been the only lawyer ever, however, to set a funny law school exam: "A Congress dissatisfied with the president's management of military affairs has decided to vest control of the armies of the United States in an Independent Colonel. Is this constitutional? Explain your answer."

Bork reshaped antitrust law with his still-classic 1978 book, The Antitrust Paradox, which forced lawyers to confront the contradiction between the purposes of antitrust law: protecting small businesses from larger competitors and protecting consumers from collusive pricing. It was one or the other, Bork insisted. That logical dilemma forced a change in law that reverberates to this day - and eventually led Bork to (yet another!) of his doomed causes, the antitrust campaign against Microsoft's then-dominant Internet browser on behalf of the doomed pioneer, Netscape. Bork argued that Microsoft should not be allowed to "bundle" a browser into its operating system, for fear that Microsoft would boot-strap itself into an unassailable market domination.

As that story suggests, Bork's extraordinary powers of legal analysis did not always vouchsafe him the gift of accurate prophecy. In his later years, his vision of the American future became steadily grimmer and darker. The pain and discomfort of many illnesses may have influenced his perceptions. A lifelong agnostic, Robert Bork accepted Catholicism in his old age. He drew much comfort from his new-found faith, but little hopefulness.

Pessimistic as he was, however, Robert Bork was in no way bitter or angry. "Mordant" is the word I think I want to describe his conversation. His bleak assessment of his fellow human creatures was based upon hard experience. He was used to hearing his ideas distorted, and his best actions distorted and vilified. Before his nomination to the Supreme Court, Bork was best known as the man who fired Watergate special prosecutor Archibald Cox. Bork's two immediate superiors in the Department of Justice had resigned rather than execute the presidential order. Bork didn't approve the order any more than the others did. But he also understood that the order was a legal one, and that somebody sooner or later was going to have to carry it out. This unpleasant duty had to be done, and since it had to be done, Bork's sense of responsibility required him to do it.

The whole domain of law and judging was bounded, in Bork's view, by a like sense of responsibility. Laywers and judges, as he saw it, were not knight-errant righters of wrong, not freelance agents of abstract justice, but fallible people no wiser than anyone else, entrusted only with certain defined powers to settle certain kinds of disputes. Those judges who claimed greater power received more applause than Robert Bork ever drew, but they did not deserve. Their actions were power-grabbing and their motives were arrogant. Bork made this case powerfully and vividly in the best book of his later years, Coercing Virtue, which I'm very proud to say originated as a lecture in honor of the memory of my mother at the University of Toronto.

Bork's highest worldly ambition ended in disappointment. Yet he achieved at least one supreme success. He was always lucky in love, twice married devotedly. His first wife died of cancer in 1980. He is survived by his accomplished children (Charles, Robert, and Ellen) and by his second wife, Mary Ellen, a woman of the highest character, warmest kindness, and profoundest faith. Her grief is consoled only by her sure belief that she and Robert Bork have parted only for the briefest interval in the long span of eternal life.